KEN KIRSCHENBAUM, ESQ
ALARM - SECURITY INDUSTRY LEGAL EMAIL NEWSLETTER / THE ALARM EXCHANGE
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Video and audio recording neighbor’s property in Arizona
June 25, 2021
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Video and audio recording neighbor’s property in Arizona
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Ken,
I just ran into the first customer who is asking for audio and video recording capabilities form their cameras.
In this case they want cameras to watch their property line next to their neighbor because their neighbors are a nuisance. They also want audio recording capabilities.
It’s all an easy decision (the equipment is readily available, and the connection and configuration are all easy until I think about the potential legal ramifications.
Their neighbor is a resident in a residential neighborhood but the home is being used to house people who have physical or mental impairments; all unrelated persons, not a single family in a single-family residence; they are a nuisance. They’re terrorizing their dogs, backing their cars onto their lawn, have knocked down their block wall/fence on at least one occasion. Loud music after hours, etc. So, naturally, these people want to record all of this so they can show the owners of the “home” what’s going on and, if needed, provide evidence to the local police for enforcement of local ordinances.
So, is it legal to do the audio and video recording in this instance? What is my legal obligation? Can I just state in my proposal that it’s “your responsibility to comply with all laws”? But then am I responsible if I install, program, setup recoding parameters, etc?
Lastly, do your contracts cover me?
If you want to make this a newsletter item, that’s fine – but leave me as Anonymous in Arizona
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Response
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Audio – video laws are generally state laws and it’s hard to keep up with them. Of course technology is changing faster than the laws. Alarm professionals feel constrained when asked to install audio components and cameras when the view will go beyond the customer’s property line and into adjoining private property. Again, as a general rule you can do the installation; it’s the customer’s responsibility to use the equipment in a lawful manner. The Residential All in One and the Commercial All in One make this clear. So installing the equipment shouldn’t overly expose you to liability.
Advising your customer what the law is may expose you to liability. You’re not a lawyer and you have no legal duty to ensure that the systems are used lawfully, though you are not permitted to do an installation that explicitly violates the law. As you will see below Arizona does have a list of places where you should not do an installation.
Why should you avoid counseling your customer on the law of audio and video? Because when they get into trouble they are going to blame you. You will find that the law is not particularly clear and the myriad of scenarios can change the outcome on legality and legal exposure easily.
Below is the Criminal Law in Arizona. I’ve highlighted part of it that seems to pertain to your question, and it appears that your customer should post a sign that video and audio is being recorded. Obviously the recordings need to be used in a lawful manner, but turning it over to the property owner or police would qualify for legal use.
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Criminal Law § 13-3019. Surreptitious photographing, videotaping, filming or digitally recording or viewing; exemptions; classification; definitions
A. It is unlawful for any person to knowingly photograph, videotape, film, digitally record or by any other means secretly view, with or without a device, another person without that person’s consent under either of the following circumstances:
1. In a restroom, bathroom, locker room, bedroom or other location where the person has a reasonable expectation of privacy and the person is urinating, defecating, dressing, undressing, nude or involved in sexual intercourse or sexual contact.
2. In a manner that directly or indirectly captures or allows the viewing of the person’s genitalia, buttock or female breast, whether clothed or unclothed, that is not otherwise visible to the public.
B. It is unlawful to disclose, display, distribute or publish a photograph, videotape, film or digital recording made in violation of subsection A of this section without the consent or knowledge of the person depicted.
C. This section does not apply to:
1. Photographing, videotaping, filming or digitally recording for security purposes if notice of the use of photographing, videotaping, filming or digital recording equipment is clearly posted in the location and the location is one in which the person has a reasonable expectation of privacy.
2. Photographing, videotaping, filming or digitally recording by correctional officials for security reasons or in connection with the investigation of alleged misconduct of persons on the premises of a jail or prison.
3. Photographing, videotaping, filming or digitally recording by law enforcement officers pursuant to an investigation, which is otherwise lawful.
4. The use of a child monitoring device as defined in section 13-3001.
D. A violation of subsection A or B of this section is a class 5 felony.
E. Notwithstanding subsection D of this section, a violation of subsection A or B of this section that does not involve the use of a device is a class 6 felony, except that a second or subsequent violation of subsection A or B of this section that does not involve the use of a device is a class 5 felony.
F. Notwithstanding subsection D of this section, a violation of subsection B of this section is a class 4 felony if the person depicted is recognizable.
G. For the purposes of this section, “sexual contact” and “sexual intercourse” have the same meanings prescribed in section 13-1401.
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Ken Kirschenbaum,Esq
Kirschenbaum & Kirschenbaum PC
Attorneys at Law
200 Garden City Plaza
Garden City, NY 11530
516 747 6700 x 301
ken@kirschenbaumesq.com
www.KirschenbaumEsq.com
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